Bass v. State

• Court: Maryland Supreme Court
• Writing for the Court: MELVIN, Judge.
• Citation: Bass v. State, 182 Md. 496, 35 A.2d 155 (Md. 1943)
• Decision Date: 15 December 1943
• Docket Number: 54.
• Parties: BASS et al. v. STATE.

35 A.2d 155

182 Md. 496

BASS et al. v. STATE.

No. 54.

Court of Appeals of Maryland

December 15, 1943

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Harry Bass and others were convicted of violating the law against the showing of obscene motion pictures, and they appeal.

Affirmed.

Ellis Levin and A. David Gomborov, both of Baltimore, for appellants.

J Edgar Harvey, Asst. Atty. Gen. (William C. Walsh, Atty. Gen J. Bernard Wells, State's Atty., and Anselm Sodaro, Asst. State's Atty., both of Baltimore City, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, MELVIN, ADAMS, and BAILEY, JJ.

MELVIN Judge.

The appellants were indicted and convicted for violating the law against the showing of obscene motion pictures. It was conceded that the particular picture in question was obscene and uncensored, and that the appellants directly participated in the exhibition of it. The only issue in the case is the technical one of the manner in which the evidence was obtained, it being contended that this was contrary to the 'search and seizure' provisions of the statute and of the organic law. The indictment contains eleven counts, which include conspiracy 'to unlawfully show, exhibit and expose certain lewd, obscene and indecent pictures and photographs, the said picture and photographs being too obscene to be spread on the records of this Court.'

Each of the seven defendants (appellants) pleaded not guilty and submitted his case for trial before the Court without a jury. The verdict was 'guilty', generally, under the indictment as to each defendant and all have joined in this appeal.

The record shows that the appellants are members and officers of the 'Louis D. Brandeis Lodge of the Knights of Pythias', which is the Baltimore branch of that organization in Maryland, and which, on the evening of June 17, 1943, held a prearranged stag party for members and prospective members at the Pythian Building. The Police Department having been forewarned as to this party and as to the alleged obscene nature of the exhibition to be given, a 'strip tease' performance, sent four of its officers to the designated premises, which were located on the fourth floor of the lodge building, corner Charles and Preston Streets. At the first door on which they rapped, they were told that there was a private meeting going on and that they could not enter. The officers then walked across to the opposite side of the building where one of them, Lieut. Emerson, rang the bell at a door which was opened to them by the appellant, Raskin. It is at this point that the conflict in the testimony presents the issue of fact upon which the decision of the case largely depends.

According to the State's witnesses, Lieut. Emerson, Sergeant Stone and Officer Harla, the entrance of the four officers from the hall to the anteroom was without protest or hindrance and was through a door that had been opened 'wide' by Raskin. The latter testified that, on the contrary, in answer to the bell he went to the door, although he was not the doorkeeper, 'and opened it slightly, and before he had a chance to ask who it was, or find out the pass word, Lieut. Emerson, followed by Sergeant Stone and the other two officers, pushed the door in and pinned him against the wall.'

This is directly denied by the officers, themselves, and Raskin is the only defense witness on this point, although there were several other persons in the room at the time the officers entered it, including two women. One of the persons, in particular, Joseph J. Mund, although called as a defense witness, was not even asked as to the manner of the officers' entrance and gave no testimony regarding it. They all remained in this anteroom for several minutes. Besides the two women above mentioned, there were three others in an adjoining dressing room, all five of whom were said to have been strip tease dancers.

While standing in this outer room both Lieut. Emerson and Sergeant Stone heard remarks coming from the adjacent lodge room which they interpreted (and correctly, it later developed) as indicating the commission of a criminal offense involving obscenity and lewdness. They, thereupon, turned the knob of the unlocked and unattended door leading into the lodge room, and entered there. These two officers stood in the lodge room for seven or eight minutes, witnessed the exhibition of the admittedly obscene and uncensored pictures, established the identity of the persons responsible for holding the exhibition, and later seized the pictures themselves and caused the arrest of seven officers of the lodge, the defendants (appellants).

At the trial the whole defense of the case was based on the alleged violation by the police officers of the search and seizure provisions of the law, that is to say, of Section 5, Article 35 of Flack's Code of 1939 and Articles 22 and 26 of the Maryland Bill of Rights. It was contended below, and also on this appeal, that the evidence upon which the defendants were convicted was procured as the result of 'an illegal entry, search and seizure.' There were two exceptions taken,--one to the trial court's overruling of defendants' motion to strike from the evidence the motion pictures in question, for the reason just stated, and the other, to the overruling of the motion to strike from the evidence the testimony of the officers as to what they heard emanating from the lodge room proper after they had entered the anteroom.

The appellants having invoked in their behalf the particular laws above mentioned, and having rested their defense entirely upon them, it is of first importance to determine whether or not they are applicable to a state of facts such as shown by the record in this case. This necessitates a brief review of the history of these laws showing their original and underlying purpose and scope, so that the increasing danger of misinterpreting the doctrine against illegal searches and seizures, as applied to present day conditions, may be avoided.

Articles 22 and 26 of the Maryland Declaration of Rights are in pari materia with the Fourth and Fifth Amendments to the Constitution of the United States (Blum v. State, 94 Md. 375, 51 A. 26, 56 L.R.A. 322), and the immunities thereby guaranteed are fairly summed up in Article 35, Section 5 of the Maryland Code. This provides that 'no evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured by, through, or in consequence of, any illegal search or seizure or of any search and seizure prohibited by the Declaration of Rights of this State; nor shall any evidence in such cases be admissible if procured by, through or in consequence of a search and seizure, the effect of the admission of which would be to compel one to give evidence against himself in a criminal case.' The background of this statute is the ancient common law, which culminated in a ruling against a previously recognized right of executive agents to enter a person's home and search it, and seize his private papers, in order to obtain evidence of political offenses. This common law rule, as revised, became formally established in England and was the law there when the government of the United States was formed. The reason for it is thus expressed in Cornelius on Search and Seizure, 2nd Ed., par. 3, page 12: 'English history discloses as the original occasion for constitutional provisions on the subject that they had their origin 'in the abuses of executive authority, and in the unwarrantable intrusion of executive agents into the houses and among the private papers of individuals, in order to obtain evidence of political offenses.' Cooley's Constitutional Limitations, 300.'

When the Constitution of the United States was adopted and ratified this principle of the common law was omitted, but it became expressly embodied in the Fourth and Fifth Amendments in the form of a declaration of rights safeguarding, especially, the immunities therein expressed. Thus the common law rule became reaffirmed in our Federal Constitution and guaranteed to the people of the United States the right of security in their persons, houses, papers and effects, against unreasonable searches and seizures at the hands of Federal officers.

Thereafter every State, as a part of its own constitution or declaration of rights, properly adopted similar provisions, so that from the foundation of our government all citizens are thus doubly protected against unreasonable searches and seizures. As expressed in Cooley's Constitutional Limitations, p. 425; 'the maxim that 'every man's house is his castle' is made a part of our constitutional law in the clause prohibiting unreasonable searches and seizures, and has always been looked to as of high value to the citizens.' In more picturesque language, the principle is expressed by Chatham in his Speeches on General Warrants as follows: 'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may sag, the wind may blow through it, the storm may enter, the rain may enter but the King of England may not enter. All his force dares not cross the threshold of the ruined tenement.' (Quoted in Cornelius on Search and Seizure, 2d Ed., par. 3, p. 13).

Ever since the early days of this doctrine, down to the present time, the rights secured by these constitutional provisions both Federal and State, have been regarded by the Courts as very precious ones to be safeguarded by them with all the power and authority at their command. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Gorman v. State, 161 Md. 700, 158 A. 903; Miller v. State, 174 Md. 362, 198 A. 710; United States v. Sam Chin, D.C., 24...